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Race and Voting, Past and Present

Suppose an African American goes to the polls on Election Day. Although
she registered to vote many months earlier, precinct workers turn her away.
"You're black," they tell her, "and blacks can't vote." The following year,
the same voter goes to the polls and is rejected again. This time, the
election workers offer a new rationale. "Your name doesn't appear on our
list," they say.

The year after that, the African American tries once more to vote. Much to
her surprise, the workers allow her to cast a ballot. Because of a
technological error, however, her ballot is never counted. "Mistakes
happen," the precinct workers tell her.

Which of these instances reflects racial discrimination against the voter?
And what, if anything, should we do about it?

The first episode is the easy one. Barring somebody from the polls on the
explicit basis of race violates American law as well as our national
conscience. When Congress passed the Voting Rights Act of 1965, many white
Americans still thought that states and localities should be allowed to
prevent blacks from participating in elections. Just three decades later,
however, the majority of Americans — of every race — say that every
citizen should have the same right to vote.

The next two instances — the faulty list and the rejected ballot — are
much harder to judge. If registration and counting errors affected all
races equally, it would be difficult to argue that our hypothetical African
American suffered discrimination. But if these mistakes occurred
disproportionately in black neighborhoods, then she might have a case.

In Florida, she does.

On Nov. 7, The New York Times has reported, registered black Floridians
were more likely than other voters to be turned away from the polls. When a
voter failed to appear on their lists, precinct workers were instructed to
dial a central phone line or to check registration lists on a laptop
computer. But very few majority-black districts received the laptops. If
the phone line was busy, then workers in these precincts would not allow
unlisted voters to cast ballots. White and Hispanic districts enjoyed
greater access to the computers, so they also had an easier time verifying
their voters.

Moreover, most black Floridians voted in counties that used the state's
notoriously error-prone punch cards. Hence blacks were also more likely to
have their ballots rejected as blank or invalid than were white voters,
whose precincts generally used an optical scanning system to count ballots.

These troubling facts should make us re-examine our last disputed
presidential contest, the Hayes-Tilden battle of 1876. Most recent
commentators on this episode have focused upon the issue of the Electoral
College, since the winner — Republican Rutherford B. Hayes — received
fewer popular votes than did the loser, Democrat Samuel Tilden. But this
emphasis upon our method of choosing presidents neglects the critical role
of race, and thereby blinds us to the real lessons of history.

Like Vice President Al Gore, Tilden initially contested the outcome of the
election. He eventually conceded, but not before his Democratic Party
extracted its own concession: Hayes and the GOP would agree to withdraw
federal troops from the old Confederacy, where they had been posted since
1867 to protect new black freedoms — especially the right to vote. "The
whole South is in the hands of the very men that held us as slaves," one
bitter African American noted.

In truth, the South had been handed back to whites several years earlier.
Pressured by enemies within his own party, Republican President Ulysses S.
Grant had stopped enforcing civil rights in the South by 1875. In the 1876
election, then, Southern blacks could not vote without risking attack — or
death — at the hands of such white vigilantes as the Ku Klux Klan.

Some courageous blacks went to the polls. But many others stayed home,
making the election far closer than it should have been. Had blacks been
allowed to participate freely, they would have added thousands of votes to
the party of Lincoln — and Hayes would have easily won the election at the
ballot box, as virtually every leading historian of the period now maintains.

Fast forward to our own disputed election, where the party roles are
reversed: African Americans cast their votes overwhelmingly for Gore and
the Democrats, not for George W. Bush and the Republicans. If large numbers
of black voters had not been turned away — and if large numbers of blacks'
ballots had not been rejected — we can fairly assume that Gore would have
taken Florida and would have advanced to the White House.

Yes, there is a difference between denying people the vote because of
their race — as occurred in 1876 — and denying them the vote because of a
bureaucratic error. Whatever their cause, however, Florida's electoral
mistakes had a discriminatory effect: they disenfranchised black voters
more often than white voters. That should worry any American who believes
in racial equality.

There may soon come a time when Al Gore — like Samuel Tilden before him
— is forced to concede this year's election. Whereas the Democrats of 1876
struck a blow against civil rights, though, the Democrats of 2000 have an
opportunity to strengthen them. In exchange for recognizing the Bush
victory, Gore should demand a full investigation of the Florida vote and a
uniform federal law on election procedures. That would hardly atone for the
sins of the past, of course, but it might make us less likely to repeat
them in the future.

Jonathan Zimmerman teaches history and education at New York University. He is the author of "Small Wonder: The Little Red Schoolhouse in History and Memory" (Yale University Press).